Nepal: respect Supreme Court ruling on human rights law

The Parliament of Nepal should reject the Ordinance on Truth, Reconciliation and Disappearances tabled this week and enact a new transitional justice mechanism that complies with international human rights law, the ICJ and HRW said today.

The Ordinance on Disappearances, Truth and Reconciliation Commission, signed by the President on 14 March, 2013, was declared unconstitutional and in violation of international human rights law by the Nepali Supreme Court on 2 January, 2014.

In a directive, the Supreme Court ordered the Ordinance be repealed or amended significantly to bring it in line with Nepal’s obligations under national and international law.

However, on 27 January, the Government reintroduced the Ordinance with no amendments in the meeting of the Legislative-Parliament – in direct contravention of the Supreme Court’s orders.

“Tabling a rejected version of the Ordinance after the Supreme Court’s landmark judgment on transitional justice is contemptuous, and raises serious concerns over the government’s respect for the rule of law in Nepal,” said Ben Schonveld, ICJ’s South Asia Director.

The Interim Constitution says clearly that the Supreme Court’s rulings are binding on the Government of Nepal. Article 116 of the Interim Constitution states that any order issued by the Supreme Court in the course of the hearing of a case shall be binding on the Government of Nepal and all its offices and courts.

The Supreme Court has previously held that any mechanism for transitional justice must conform with international standards, lead to accountability for serious human rights violations, and ensure victims their right to remedy and reparations, which includes the right to truth, justice, and guarantees of non-recurrence.

In its 2013 briefing paper, “Authority without Accountability,” the ICJ expressed concern over multiple provisions in the Ordinance, including amnesty provisions, which would entrench impunity for gross human rights violations in Nepal.

Any amnesty for gross human rights violations would add another layer to the complex web of immunities, documented in the report, that continue to shield those responsible for human rights abuse from accountability in Nepal.

“The Parliament of Nepal should strongly reject the tabled Ordinance and the government must expeditiously implement the Supreme Court’s directive,” said Meenakshi Ganguly, South Asia Director at Human Rights Watch. “The ordinance in its current form violates undertakings made as part of the peace agreement, and essentially strips victims of serious rights abuses of a proper chance at justice.”

The rights groups called on the government to implement the Supreme Court’s ruling, creating a new transitional justice law that, at a minimum:

Establishes two separate transitional justice commissions: a “Truth and Reconciliation Commission” and a “Commission of Inquiry on Enforced Disappeared Persons;”

Criminalizes the act of enforced disappearance in accordance with the definition set out in the International Convention on the Protection of All Persons from Enforced Disappearance and ensures that it is punishable with penalties commensurate with the gravity of the crime;

Criminalizes other serious crimes, including crimes against humanity, and other crimes under international law, in a manner that is consistent with international law;

Prohibits amnesties for gross human rights violations or crimes under international law;

Does not contain a limitation period on the reporting of violations and ensures there are no time limits on the prosecutions of of serious crimes including enforced disappearance, other crimes under international law including, war crimes, and crimes against humanity;

Ensures that the composition and structure of the Commissions complies with international standards. In particular, there should be a fair vetting system which aims to ensure the impartiality of the commission members and to ensure that no individuals against whom there are credible allegations they have committed human rights abuses are selected as Commissioners;

Requires the necessary legal and institutional measures to be taken to enable and ensure the establishment, adequate resourcing and maintenance of effective victim and witness protection mechanisms; and

Establishes and requires other necessary legal, administrative, institutional, or other arrangements for an effective reparation program.